Kinyan Peirot

Bava Batra (8:7) | Yisrael Bankier | 7 days ago

The eighth perek of Bava Batra deals with the laws of inheritance.
The Torah lays out the legal order of precedence. We learn in the
fifth Mishnah that if one wishes to nominate heirs of his estate in
contrast to the laws of the Torah, his stipulation is disregarded.

The Mishnah however teaches that one can gift their property during
their life time to individuals such that it will be completely owned by
the beneficiary only after the death, even though it appears to
contradict the Torah's instructions. The seventh Mishnah teaches
that if one wishes to, e.g gift property to his son in this manner, he
must say that he giving it to his son "from today and after death". The
stipulation is understood as meaning that he is transferring the
ownership of the land to his son now, but retaining the rights to the
"peirot", produce of the land, until after his death. The Mishnah
continues that from that point, neither the father or son would be able
to sell the land and have it take immediate effect. The father would
only be able to sell his right to the peirot. After the father's
death, the son would then seize the land from the purchaser. Similarly,
if the son sold the land, his purchaser would only be able to take the
land after the father's death.1

Considering the case where the father attempts to sell the land, what is
the law considering the transaction? Once it becomes clear that only the
peirot were sold, can the purchaser retract? If the purchaser is still
satisfied, can the father go back on the purchase?

The Mishneh Lemelech (Zechiya 12:13) cites the Tur who rules that
only the purchaser can retract, since the purchaser has a valid argument
– he wanted to purchase the land entirely. The father however, was aware
of his rights to the land and what he was selling at the time of the
sale. If the purchaser is subsequently content, the father is committed
to the sale. This is also the opinion of the Ritva.

The Rashba however argues that the sale is only binding if the father
only sold the peirot. If however he attempted to sell both the land
and peirot, the sale is considered invalid with respect to the land.
The peirot, in the context of the sale, were only included as being
part of the land, so even the father can go back on the sale of the
peirot.

The Mishneh Lemelech however resolves this debate by differentiating
between two different case, explaining that this case is similar to one
of ona'ah (fraud). If the purchaser is happy with the original price
albeit now for the peirot alone, then, like the Ritva explains, we
disregard the father's opinion. It is comparable to the case of fraud
where it is the choice of the defrauded party alone to undo the sale. If
however the purchaser still wants the field for the peirot, but only
at the market value, then the sale is now being renegotiated.
Consequently, like the Rashba explained, the father can retract on the
sale.

The Mishneh Lemelech however continues that the Rashba however
appears to contradict himself. The Rashba rules that in the case where
one sold land according to its dimensions, and it was later discovered
that half the land was stolen, the sale stands with respect to the valid
part of the land. Why does the Rashba rule differently in the case?
Why can either party not retract in this case also?

The Avnei Milui (90:23)2 answers that the two cases are different.
In our case, the issue is not the purchaser was misled with part of the
sale. As we explained the Rashba above, the land was sold alone. The
fact that the peirot were part of the original sale was not because it
was stated as a separate component of the sale, but rather because the
land itself being sold implies that peirot are included. Consequently,
once it is discovered that the land could not be sold, the peirot were
absent from the sale as well. In the case of the land sale, where half
had been stolen, each part of the land mass was sold. Consequently, once
discovered that part of the land could not have been sold, the sale of
the remainer would still apply.

1 The Tosfot R' Akiva notes, that this would be the case even if the
son died prior to the father.